European Parliament publishes information note on ethical aspects of biometric recognition and behavioral detection techniques in public spaces | Allen & Overy LLP

On September 8, 2021, the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs released a briefing note on the report that examined ethical issues related to the use of biometric recognition and behavioral detection techniques in public spaces. The full report was prepared at the request of two European Parliament committees and published in August 2021.

The report explores the deeply personal nature of behavioral data such as a person’s walk, voice, or gestures, and provides recommendations for further regulation of biometric data to protect individuals from the misuse of that data. The report also examines large-scale surveillance, algorithmic decision-making, and profiling.

After a detailed analysis of various types of biometric techniques, the report examined how these techniques are dealt with by the recent proposed law on artificial intelligence (EU Regulation on Artificial Intelligence or AI Regulation) of April 21, 2021. , as well as by other legislative instruments (such as the proposed data governance law) and whether this legislation addresses ethical and fundamental rights issues in a holistic manner.

The report supports the general approach to regulating these technologies in the AI ​​Regulation, but notes that the proposal does not consistently address ethical concerns. In view of this, the report recommends that the European Parliament and EU lawmakers consider a number of amendments (such as the inclusion of specific provisions that would ensure responsible use of certain restricted AI practices, such as biometric techniques and deductions).

The main recommendations for legislators are as follows:

  • introduce a definition of “biometric inferences” and “biometric data” and detach the definitions of “emotion recognition system” and “biometric categorization system” from the concept of “biometric data” as defined in the GDPR;
  • full or complete surveillance of natural persons in their private or professional life and of breaches of privacy and mental integrity should be included in the list of prohibited AI practices in Article 5 (1) , of the AI ​​regulation. The list of prohibited AI practices should be periodically reviewed and updated by the European Commission, potentially under the supervision of the European Parliament;
  • introduce a new section on restricted AI applications, to deal in detail with: (i) “real-time” remote biometric identification (and possibly other forms of real-time remote identification), y including, inter alia, for law enforcement purposes, (ii) other biometric identification systems, emotion recognition systems and biometric categorization systems, while limiting the admissibility of such systems and incorporating transparency obligations of operators of biometric systems; (iii) a new provision on decisions based on biometric techniques; and (iv) the potential substantial limits to the development of biometric inferences;
  • consider introducing new provisions on automated consent management in the GDPR or in the AI ​​regulation for situations where the use of biometric techniques is based on user consent. Automated consent management should enable individuals to effectively manage consent and use independent tools or service providers for consent management (such as data sharing service providers within the meaning of the Data Governance Act. data). Systems should be designed to ensure the automated transmission of consent (or withdrawal) to all recipients of biometric data and to allow automated erasure or other actions by those recipients.

The full report also includes a section with proposed wording for amending the AI ​​regulations.

The briefing is available here and the full report is available here.

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